Not Guilty: Jury sides with Sutterfield in federal case

Bull Shoals police chief beats 2 charges, mistrial declared on 3rd

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Bull Shoals Police Chief Daniel Sutterfield was found not guilty on charges of conspiracy and falsifying a report, while a mistrial was declared on the excessive force charge.(Photo: Kevin Pieper/The Baxter Bulletin)Buy Photo

HARRISON — It took 8 hours to decide, but Bull Shoals Police Chief Daniel Sutterfield walked out of the J. Smith Henley Federal Building before midnight Friday a redeemed man.

The jury in Sutterfield's highly publicized federal case found him not guilty on charges of conspiracy and falsifying a police report, while an impasse could not be broken and a mistrial was declared for the use of excessive force.

The charges in the case all were related to the July 9, 2013, domestic abuse arrest of Nicholas Dore.

Sutterfield faced prison terms of up to 10 years on the use of excessive force charge, up to five years on the conspiracy charge and up to 20 years for falsifying a police report. Sutterfield also faced up to a $250,000 fine.

U.S. District attorneys could seek another trial on the use of excessive force charge, but there was no announcement of that intent made late Friday night.

When the verdicts in the case were read, Sutterfield looked at his defense counsel and smiled, while his family members showed an enormous amount of relief. Dore and his live-in girlfriend, Cleta Almond, the victim in the domestic abuse incident that led to Dore's arrest and the allegations against Sutterfield in U.S. District Court, showed disappointment.

In a separate legal issue, Sutterfield — along with Bull Shoals police officer David Chatman and the city of Bull Shoals — is named in a civil lawsuit filed by Dore last week.

At 10:50 p.m., the jury in Sutterfield's trial entered the courtroom and told U.S. District Judge Timothy Brooks they had reached a verdict on two counts in the case, but were at an impasse on the third.

Nearly seven and a half hours into deliberations, the jury reached a verdict on the charges of conspiracy to commit offense against the United States and destruction, alteration or falsification of records. However, the 12-member panel had not been able to reach a consensus on the single count of deprivation of rights under color of law (use of excessive force).

Brooks invoked the Allen charge, known more commonly as the dynamite charge, instructing the jury to return to deliberations and reach a verdict on the undecided charge in the case. It took about one-half hour.

It had been a strange road to get to the point of verdicts on any of the charges, beginning with an unusual circumstance at 5:30 p.m when, after two hours of deliberation, a juror informed Brooks that she had to leave the federal court building to attend a funeral visitation.

At that point, Brooks appointed an alternate juror and informed the remaining 11 jury members they had to begin deliberations all over again.

The jury promptly requested pizza be delivered for dinner, setting up the possibility of a long night to decide the case's outcome.

Earlier, closing arguments finished and the jury was sent to the deliberation room at 3:29 p.m. to determine whether U.S. attorneys made a convincing enough case to convict Sutterfield.

Brooks began giving the jury instructions at 1:20 p.m. following a break after testimony closed Friday morning. In its fourth day, closing arguments for both the prosecution and defense started just before 2 p.m.

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If convicted on the charges filed against him in the case, Bull Shoals Police Chief Daniel Sutterfield faced up to 35 years in prison.(Photo: Kevin Pieper/The Baxter Bulletin)

More damaging testimony

Friday's testimony began with Sutterfield back on the witness stand and U.S. Attorney Cindy Chung continuing her relentless cross examination.

Sutterfield told the jury under Chung's questioning that he was taking hydrocodone, Soma, Xanax and Zoloft. In fact, according to the prosecution, he was taking some 300 hydrocodone pills per month, or roughly 10 per day.

After the violent arrest of Dore, in which Sutterfield injured his back to the point of needing surgery, Chung pointed out he received several paychecks while working for a tree service. Sutterfield said his employment was supervisory and did not require more labor than his job with the police department.

Chung changed directions and asked Sutterfield if the jury should believe he had time to perform tree service work, but simply procrastinated when it came to reviewing the falsified report by Bull Shoals police officer David Chatman regarding the Dore arrest.

While acknowledging many serious things happened during the arrest that should have been documented, Sutterfield agreed he did not write a supplement to the report, and said, in fact, he never reviewed it.

Defense attorney Bruce Eddy asked Sutterfield more questions on redirect in an attempt to repair the damage done by Chung's questioning.

With Eddy leading him, Sutterfield repeated his earlier testimony in the trial that Bull Shoals officer Brian Williams did not help with Dore's arrest, that Williams was scared, and had been scared in other incidents.

"There were some intense situations, domestics, where he didn't do his job," Sutterfield said. "I feel like he was complacent and failed to act."

Use of force expert takes stand

When Sutterfield finished, the defense called its last witness, use of force expert and former CIA and FBI agent Chuck Joyner, who sat in on the trial watching all the testimony. After Brooks qualified Joyner as an expert, Eddy began to question him about the Dore arrest.

Joyner said the use of force a law enforcement officer chooses should be based on the immediate threat a suspect presents, and that officers should be aware of threat indicators.

Eddy asked Joyner if the following circumstances could be considered threat indicators: an intoxicated suspect, military training, martial arts training, a domestic violence incident, a suspect who closes a garage and front door, cursing at police and being angry. Joyner said each were threat indicators that should make officers consider a suspect.

The jury appeared to take notice when Joyner agreed to the final threat indicator on the list Eddy provided: Dore lying on the couch covered by a blanket.

Eddy then had Joyner demonstrate several ways officers could have been injured after Dore was handcuffed, including the use of the open end of the handcuff, hip throws and pulling a gun from a waistband.

During cross examination by Chung, Joyner admitted Dore's actions during his arrest qualified as passive resistance using the use of force scheme Joyner created and often wrote about.

Additionally, Joyner admitted he knows of cases where officers have falsified reports to cover up their illegal use of excessive force.

Closing arguments

The prosecution went first in closing arguments and Chung appealed to jurors to use commonsense.

"You know what happened in that house that day," Chung told the jury. "Two officers testified to what happened. They are not friends of Mr. Dore."

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Nicholas Dore, the alleged victim of a beating at the hands of Bull Shoals Police Chief Daniel Sutterfield, leaves the J. Smith Henley Federal Building in Harrison after testifying last week.(Photo: Josh Dooley/The Baxter Bulletin)

Chung told the jury Sutterfield is a friend of the brother of Cleta Almond, the live-in girlfriend Dore was convicted of assaulting in the domestic abuse incident.

Chung also spoke to the jury about Sutterfield's testimony, pointing out falsehoods and alleged attempts to cover up the excessive force he applied during Dore's arrest.

"First, his story has changed over time," Chung said. "Look at his notes, and what he said on the stand. They don't match."

Chung mentioned a phone call between Sutterfield and Chatman as further proof of a cover-up attempt.

"He called Chatman and tried to feed him a story to tell the FBI," Chung said. "He wanted to make sure his friend didn't tell the FBI the truth."

And, by sitting with Chatman while the arrest report was written, and not documenting an account of his own, Chung told the jury Sutterfield further concealed the truth. She pointed out the leverage held over Chatman, who wasn't a certified police officer at that point and needed Sutterfield to sponsor his training.

"He made Chatman his fall guy in this report," Chung said. "He made Chatman write the false report because he knew Chatman wanted to go to the law enforcement academy."

Defense gives different view

When Eddy gave his closing arguments, he presented jurors a different view of Chatman's role in the incident and ensuing trial.

"David Chatman is being used by the government in this case to create charges that simply aren't there," Eddy said. "David Chatman told Mayor Bruce Powell he would have said anything to the FBI to get out of there."

As for the force involved during Sutterfield's arrest of Dore, Eddy told the jury that there actually wasn't enough force used. He continued if Sutterfield had used more force earlier in the arrest, some of the problems that occurred may have been prevented.

"Chief Sutterfield always tried to use the least amount of force necessary," Eddy said. "That probably created more problems."

Sutterfield will be sentenced at a later date after officials conduct an investigation and provide the judge with a pre-sentencing report.

• April 7, 2014: Following an investigation, Sutterfield is arrested by FBI agents on charges of using excessive force against Dore and falsifying a report regarding the incident.

• April 9, 2014: Sutterfield appears in federal court in Fort Smith, and is released into the custody of Bull Shoals Mayor Bruce Powell. A judge ordered that Sutterfield live in the mayor's home as a condition of his release.

• April 9, 2014: Arkansas Workers' Compensation Commission says it has an open investigation on Sutterfield regarding the claim he filed in which Sutterfield said he was injured while arresting Dore.

• April 15, 2014: Powell informs Bull Shoals City Council he has put Sutterfield on administrative leave until the federal criminal case is disposed of, reversing course from an earlier decision to keep his police chief on the job in a light-duty capacity.

• May 7, 2014: Federal grand jury indicts Sutterfield on one count of deprivation of rights under color of law.

• June 3, 2014: Sutterfield enters a not guilty plea, and is released from the bond condition requiring him to live with Powell.

• June 25, 2014: Sutterfield's indicted on two more charges including conspiracy to commit offense against the United States and destruction, alteration or falsification of records.

• July 1, 2014: U.S. attorneys notify the court and defense counsel that the prosecution intends to call witnesses to testify that Sutterfield used excessive force in another arrest, and attempted to use it in a third arrest.

• July 9, 2014: Yellville attorney Benjamin Gibson files a civil lawsuit on behalf of Dore naming Sutterfield, Bull Shoals police officer David Chatman and the city of Bull Shoals as defendants. The suit claims Dore's rights were violated when Sutterfield allegedly beat him, that Chatman watched and did nothing, and that the city condoned the practice.

• July 13, 2014: Sutterfield's criminal attorney, Bruce Eddy, files a motion asking the court to prevent the prosecution from entering evidence that Dore's wrists were injured as a result of Sutterfield putting him in handcuffs.

• July 15, 2014: A jury of six men and six women are seated and the federal trial against Sutterfield begins at the J. Smith Henley Federal Building in Harrison.

• July 18, 2014: After 8 hours of deliberations, the jury finds Sutterfield not guilty on conspiracy and falsifying a police report charges, while a mistrial is declared on the use of excessive force charge.